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Ban on Flag-Burning Annual Trivial Pursuit

This opinion piece ran in the Sunday Republican on Sunday, July 10, 2005.

By Christopher H. Pyle

The most basic provision of our Constitution is freedom of expression. Not for opinions we like, but for opinions we hate.

We don't need freedom for opinions we like. We need it for opinions we hate. Nobody censors opinions they like.

So why is Congress eager to violate this principle, with a constitutional amendment that would allow Congress to pass laws making flag desecration a crime? Why would members of Congress want to make an exception to the Constitution's most basic principle, just so they can punish an occasional protester who burns a flag in opposition to government wrongdoing?

The flag must be protected, we are told, because it is "sacred." Really? More sacred than the existing Constitution?

Most supporters of this amendment claim to be Christians, which is strange, because Christianity forbids turning political symbols into sacred icons. To treat any flag as sacred is to commit the sin of idolatry, the forbidden worship of a graven image.

The most sacred symbol of Christianity is the cross. But the pious politicians who would protect the flag are not trying to protect the cross, or any other religious symbol.

Should they? If so, which, and how many, religious icons would you have Congress protect against the occasional protester? The Bible? The Koran? The writings of L. Ron Hubbard, founder of Scientology?

And which uses of the American flag would you have Congress punish? Flags on bikini bottoms? Flags on beer cans? Old Glory beach towels, with which bathers dry themselves?

Meanwhile, what is to prevent protesters from evading the law by simply burning an imitation? A flag with 49 stars, for example. If the law is so easily circumvented, what will our pious politicians have achieved, besides another fraud upon gullible voters?

Every year we go though this charade. Conservative members of Congress call up this amendment, so they can again slime their opponents for being unpatriotic.

But the amendment always fails the Senate by a few votes, as reluctant moderates (of both parties) again shield posturing conservatives from the consequences of their own fraud upon the voters.

This charade has gone on for so many years that the media does not even bother to report on it.

This year, however, the amendment might pass the Senate by a vote or two. If it does, most state legislatures will go along and the Constitution will have been defaced, and for no good reason, since, contrary to what conservatives claim, almost no one but foreigners in other lands ever burns the flag in protest.

But that's OK, complacent people assume, because the courts can always declare the amendment unconstitutional. Not so. Courts can refuse to enforce acts of Congress which violate the Constitution's higher law, but they cannot refuse to enforce the highest law of the land. The only way to get rid of a bad amendment to the Constitution is to pass a new one which, in this case, is not likely.

Accordingly, the time has come for patriotic Americans of both parties to demand an end to this trivial pursuit of symbolic piety, this partisan game of pin-the-donkey, this blasphemous fraud upon the voting public.

Congress has better things to do than deface the Constitution.

Christopher Pyle, a former intelligence officer, teaches constitutional law at Mount Holyoke College.